Parchman v. Mobile & O. R. R. Co.

• Decision Date: 24 May 1926
• Docket Number: 25437
• Citation: 109 So. 665,143 Miss. 726
• Parties: PARCHMAN et al. v. MOBILE & O. R. R. CO. [*]
• Court: Mississippi Supreme Court

109 So. 665

143 Miss. 726

PARCHMAN et al. v. MOBILE & O. R. R. CO. ^[*]

No. 25437

Supreme Court of Mississippi

May 24, 1926

Suggestion of Error Overruled Oct. 11, 1926.

(In Banc.)

RAILROADS.

Prima-facie statute (Hemingway's Code, section 1645) is inapplicable irrespective of ordinary motive power, where railroad car causing injury was not at time moved by one of enumerated agencies. (Affirmed by divided court.)

HON. T E. PEGRAM, Judge.

APPEAL from circuit court of Chickasaw county, Second district, HON T. E. PEGRAM, Judge.

Action by Mrs. Kate Parchman and others against the Mobile & Ohio Railroad Company. From a judgment on directed verdict for defendant, plaintiff appeals. Affirmed.

Affirmed.

Geo. T. and Chas. S. Mitchell, for appellants.

The only material inquiry is whether or not the evidence for the plaintiffs in the case demonstrated clearly and beyond dispute the facts relative to the injury and the circumstances surrounding same so as to make the prima-facie statute inapplicable.

If the testimony shows the facts of the injury and circumstances attending and surrounding the injury and if this constitutes a perfect defense under the law, then, of course, the action of the court below in directing a verdict for defendant was correct. If it does not, or if it leaves it doubtful, or if it does not constitute a legal defense--that is, does not exculpate the defendant--then the action of the court below was erroneous. We submit that the testimony does not show any of the facts of the injury, but only shows that the child met his death by reason of the running cars of defendant railroad company.

We submit under the evidence produced in this case that the testimony shows only one of the attendant circumstances surrounding the injury; that is, the conduct of one of the employees whose acts could have contributed to the injury. But this is insufficient under the law as construed by this court. All of the attendant circumstances surrounding the injury must be clearly shown and beyond dispute, or else the prima-facie statute remains in the case and controls same. Therefore, we submit that it was incumbent upon the defendant to have produced each and every one of the employees engaged in work in these yards on the day and at the time and place in question, whose acts could have in any way contributed to the injury, for the circumstances attending an injury consist of the conduct of those whose acts could have caused the injury. Until this was done, we submit, that the attendant circumstances were not shown and the court below erred in holding that they were. A. & V. R. R. Co. v. Thornhill, 63 So. 674; Hollinshed v. R. R. Co., 55 So. 40; Y. & M. V. R. R. Co. v. Landrum, 42 So. 675; R. R. Co. v. Brooks, 38 So. 40; R. R. Co. v. Robinson, 64 So. 838; So. R. R. Co. v. Hamel, 74 So. 276; R. R. Co. v. Cole, 57 So. 556.

Under the above rulings of this court when proof of injury by a running train or car is shown, it then devolves upon the railroad company to explain the injury, show the facts and circumstances surrounding it, and these facts and circumstances when shown must be certain and not conjectural and must exculpate the defendant of liability or else the plaintiff must prevail under the statute. See, also, R. R. Co. v. Knight, 103 So. 377.

Even though the child was a trespasser, defendant was liable to him for its negligence. This negligence is presumed under the statute and until the defendant offered proof preponderating in its favor that it was free from negligence, the presumption was not met. 33 Cyc., Railroads, 773-74; and 769; R. R. L. & P. Co. v. Jones, 45 So. 180; Ollis v. H. E. & W. T. R. R. Co., 73 S.W. 30; Davis v. St. L. & S.W. R. R. Co., 92 S.W. 931; St. L. & S. F. R. R. Co. v. Jones, 16 A. L. R. 1048.

Stovall & Stovall and Carl Fox, for appellee.

It is undisputed that deceased was a trespasser. It is the rule established by a long line of cases in this court that a railroad company has no duty to be on the lookout for trespassers, and owes no duty to a trespasser unless and until he is discovered in a place of danger. There is the same absence of duty whether the trespasser be an adult or an infant. Y. & M. V. R. R. Co. v. Smith, 71 So. 752, 111 Miss. 471, 484; Y. & M. V. R. R. Co. v. Huff, 71 So. 757, 111 Miss. 486, 490; N. O. M. & C. R. R. Co. v. Harrison, 61 So. 655, 105 Miss. 18, 20; I. C. R. R. Co. v. Ash, 91 So. 31, 32; M. & O. R. R. Co. v. Robinson, 96 So. 749 (Miss.).

Appellant says that it was incumbent upon defendant to prove that none of its employees saw deceased, or if they did, were not negligent, and that defendant failed to prove it. They argue that the prima-facie statute, section 1645, Hemingway's Code, is applicable and that facts and circumstances exonerating defendant from blame were not established by the evidence.

Plaintiffs intended to establish, and we think it is too clear for argument that they did establish, that none of the employees of the defendant knew that he was between the cars or in a place of danger, and that none of them knew that he was anywhere about the coal chute until after he was injured. That being true, it was established that there never was any duty owing to deceased and there being no duty, there could not have been any breach of duty toward him, such as trespasser. M. & O. R. Co. v. Robinson (Miss.), 96 So. 749; and other cases cited hereinabove. See, also, Birmingham Ry., Light & Power Co. v. Jones, 153 Ala. 157, 45 So. 177, following the decision in Southern Ry. v. Williams, 143 Ala. 212, 38 So. 1013.

Furthermore, the prima-facie statute, section 1645, Hemingway's Code, does not apply in this case. The loaded car struck an empty car moving it a half car length, or twenty feet, and Dana Parchman was caught between the north bumper of this empty car and the south bumper of another empty car. The loaded car itself was moved only a short distance--the exact distance not being shown--its enertia being first overcome by a pinch bar after which it was kept in motion by men pushing it. Was the injury an "injury inflicted by the running of cars" within the meaning of the statute? These cars were not "running," within the ordinary thought conveyed by the use of the term with respect to locomotives and cars. One describing what was done would say that the cars were "moved," but would never think of speaking of them as "running" cars. The mere shifting of position of two cars as in this case was not the "running" of cars which the legislature naturally had in mind when the statute was enacted.

Nor were these cars "propelled by the dangerous agency of lever power" within the meaning of the statute. A pinch bar is a crowbar with a thickened and bevelled end. It is, therefore, a lever, but is it the "dangerous agency of lever power" within the meaning of the statute? The legislature evidently had in mind hand-cars used by section crews operated by men standing on the car and working levers up and down, which cars can be run at quite rapid rates of speed. And as the witness, Hayward White described the movement of the loaded car, the pinch bar was used merely to start it and it was then kept in motion by men pushing it.

But it is immaterial whether the prima-facie statute is or is not applicable to the shifting of the position of a car as in this case. It is conceded that deceased was a trespasser; and the facts and circumstances necessary to the exoneration of defendant were established by counsel for plaintiffs at some pains to themselves in an attempt to support a theory which fell to the ground.

Geo. T. and Chas. S. Mitchell, in reply, for appellants.

We failed to anticipate the defense offered by counsel for appellee, that the prima-facie statute has no application to the case at bar, for the reason that it was not shown that the running car that struck deceased was propelled by the agencies of steam, gasoline, electricity or lever power.

However, we submit that it is not necessary that this be shown when it is shown that the injured person received his injury at the hands of a railroad corporation using cars, engines, etc., propelled by the above agencies, by one of its cars running on tracks. In other words, when it is shown that a person was injured by a railroad corporation using engines propelled by the agencies of steam, electricity, gas or lever power, then the statute applies and it makes no difference whether at the time the car was being moved by an engine or other locomotive power, it being sufficient if it is shown that it was running on a track.

The first part of the statute designates the corporations that shall be subject to it. It only states that corporations using engines, locomotives, etc., propelled by the agencies of steam, etc., shall be subject to the above statute. There is nothing in the statute that even suggests that the car causing the injury must, at the time of the injury, be moving by any kind of power. It is sufficient just so it is running or moving.

As to the second part of the above statute, we find that it says that proof of injury by the running of the cars, etc., shall be prima-facie evidence of the want of reasonable skill, care, etc. It does not say that the proof of injury by the running of the cars, at the time being propelled by the agencies of steam, gasoline, etc., shall constitute a prima-facie case of liability, but it says that it is sufficient if the car is "running."

All that is necessary to bring the statute into play is that the car be moving on a track and that it be owned or operated by a railroad corporation, partnership, or individuals using cars, locomotives, engines, etc., propelled by the agencies of steam, gas, electricity, etc., with the further requirement that they...